Cassidy, Cruz, Manchin, Colleagues Urge NOAA to Withdraw Proposal Threatening Domestic Energy Production

U.S. Senators Bill Cassidy, M.D. (R-LA), Ted Cruz (R-TX), Joe Manchin (D-WV), and 13 colleagues urged the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) to withdraw a proposed rule designating more than 28,270 square miles of the Gulf of Mexico as a “critical habitat” for the newly discovered Rice’s whale – a clear attempt to shut down oil and gas operations in the area over a single sighting of a whale in 2017. In the letter, the senators argue the proposed rule lacks sufficient evidence, relies on an incomplete study, and vastly underestimates the economic and national security impacts of such a designation.

“The proposed rule as written fails to comply with important elements of the Endangered Species Act (ESA) and would jeopardize domestic energy production, national security, and other important interests,” wrote the senators.

“For one, the proposed rule claims, without adequate evidence, ‘that at the time of listing Rice’s whales occupied the Gulf of Mexico.’ NFMS claims this based on only a single sighting of a Rice’s whale off the central Texas coast in 2017 and de minimis possible acoustic detections in the western and northern Gulf of Mexico. The reality is decades of surveys of the Gulf have made very few observations of Rice’s whales and only in limited geographic areas. This is both legally and scientifically insufficient to demonstrate the Rice’s whales occupied the habitat. The proposed designation also fails to meet the ESA’s requirement that a critical habitat be ‘specific areas within’ the broader geographical area occupied by the species. Instead, the rule would designate more than 28,270 square miles of the Gulf of Mexico as a critical habitat, an area larger than West Virginia,” continued the senators.

“The proposed rule may also jeopardize the nation’s military readiness and national security by imposing additional restrictions on training activities at the Eglin Gulf Test and Training Range (‘Eglin Gulf Range’). The U.S. Air Force uses the Eglin Gulf Range to train fighter pilots, maintain operational readiness, and test other military capabilities. NMFS’s proposed critical habitat area significantly overlaps with the test range of the Eglin Gulf Range, potentially placing restrictions on the Air Force’s use of the area for that purpose and hurting military readiness. Again, NMFS largely disregards this potential impact, estimating a cost to the military of $5,500 per year,” concluded the senators.

Cassidy, Cruz, and Manchin were joined by U.S. Senators Roger Wicker (R-MS), John Barrasso (R-WY), Shelley Moore Capito (R-WV), Jim Risch (R-ID), Mike Crapo (R-ID), John Kennedy (R-LA), Tommy Tuberville (R-AL), Mike Lee (R-UT), Cynthia Lummis (R-WY), Pete Ricketts (R-NE), Cindy Hyde-Smith (R-MS), Katie Boyd Britt (R-AL), and Rick Scott (R-FL) in signing the letter.

Read the full letter here or below.

Background

In July, the Biden administration entered into a closed-door de facto settlement agreement with the Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network. As part of that agreement, the administration voluntarily removed six million acres in the Gulf of Mexico from offshore oil and gas leasing as well as imposed a 10-knot speed limit and restricted nighttime transit for certain oil and gas vessels, significantly disrupting companies’ ability to explore for and produce oil and gas under the basis of protecting the Rice’s whale. However, previous analysis performed by NOAA has stated that additional mitigations for the Rice’s whale were not warranted and federal statutes and regulations require much more evidence and opportunity for public comment before such a sweeping decision could be implemented.

In response, Cassidy led a group of colleagues in introducing the Warding Off Hostile Administrative Lease Efforts (WHALE) Act. The WHALE Act prevents the U.S. Departments of Commerce and the Interior (DOI) from issuing maritime rules related to the Rice’s whale that would impede offshore energy development and military activities. He also filed an amicus brief asserting that the settlement agreement undermined the faithful execution of the laws, since the lease sale was required by the Inflation Reduction Act of 2022. Subsequently, the district court ordered the administration to restore the removed acreage and other restrictions on oil and gas vessels. The Fifth Circuit issued a separate ordering moving the sale date to November 8, 2023.

Last month, the Biden administration announced its long-awaited 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program as required by the Outer Continental Shelf Lands Act. It called for three over a five-year period, with no lease sales scheduled for the Atlantic and Pacific Oceans, or offshore Alaska, and no lease sales held in 2024. This constitutes the smallest offshore energy program in U.S. history. Cassidy pre-empted the announcements and introduced the Offshore Energy Security Act of 2023 with Senator Cruz which requires DOI to hold two offshore oil and gas lease sales in 2024 and 2025.

Dear Dr. Spinrad and Mr. Bernhart: 

We write to provide comments and request the National Marine Fisheries Service (NMFS) withdraw the proposed rule for designation of critical habitat for the Rice’s whale. The proposed rule as written fails to comply with important elements of the Endangered Species Act (ESA) and would jeopardize domestic energy production, national security, and other important interests. The ESA’s purpose is to provide adequate protections for the nation’s iconic wildlife while balancing the many uses of federal lands and waters. 

The ESA allows NMFS to designate an area as a “critical habitat”—a specific geographic area that is essential to conservation of an endangered or threatened species. Designation of a critical habitat may lead to severe restrictions of area activities, including those conducted by federal agencies, requiring a federal permit or license, or that are federally funded. In designating any particular area as a critical habitat, NMFS is required to use the best available science to consider the economic impact, the impact on national security, and any other relevant impact. Unfortunately, NMFS failed to do so in this case, vastly underestimating the proposed rule’s economic and national security impacts.  Moreover, the proposed rule denies the public the opportunity to comment on the studies used in the proposed rule’s analysis.

For one, the proposed rule claims, without adequate evidence, “that at the time of listing Rice’s whales occupied the Gulf of Mexico.” NFMS claims this based on only a single sighting of a Rice’s whale off the central Texas coast in 2017 and de minimis possible acoustic detections in the western and northern Gulf of Mexico. The reality is decades of surveys of the Gulf have made very few observations of Rice’s whales and only in limited geographic areas. This is both legally and scientifically insufficient to demonstrate the Rice’s whales occupied the habitat. The proposed designation also fails to meet the ESA’s requirement that a critical habitat be “specific areas within” the broader geographical area occupied by the species. Instead, the rule would designate more than 28,270 square miles of the Gulf of Mexico as a critical habitat, an area larger than West Virginia. 

The proposed rule also cites unreliable and incomplete sources for its conclusions. NMFS inappropriately cites an unpublished, still in peer-review study for the modeling that serves as the basis for including vast suitable areas of habitat of the Rice’s whale outside of the smaller core distribution area. Recently, NMFS was obligated to engage in a corrective rulemaking on a separate issue due to miscalculations in the supporting analysis—something that would have been made clear to NMFS earlier had it allowed public comment on the supporting analysis. That same risk is present with this proposed rule. NFMS cannot be sure of the accuracy and integrity of the data it used to define this vast critical habitat area before the study and its peer review are complete. If NMFS chooses to rely on this study, it should wait until the study is complete and has been peer reviewed then allow public comment on a proposed rule that is based upon completed work, so the public can verify its use and accuracy. 

NMFS’s economic analysis in the proposed rule similarly falls short. It vastly underestimates costs for consultations under the ESA and fails to account for potentially significant project delays, modifications, and other economic costs resulting from the critical habitat designation. Further, the economic impact analysis completely dismisses the potential for modifications to federally permitted activities and their associated economic costs. The proposed critical habitat area stretches across many important oil and gas leases, shipping channels for major U.S. ports, and commercial and recreational fishing grounds—all activities that are likely to be dramatically curtailed if this rule is finalized. Yet the proposed rule completely disregards the potential impact on these industries. NMFS estimates designating the Gulf of Mexico’s entire 28,270.65 square miles as a critical habitat will have “incremental administrative costs” of $240,000 over ten years—an absurdly low assessment.

The Central and Western Gulf of Mexico serves as an energy hub for the nation. Federal offshore oil production accounts for 15 percent of total U.S. crude oil production. Together, there are over 345,000 workers servicing the offshore energy industry at any single moment in time.  These businesses operate on a continuous 24 hour, 7 days a week rotation. To illustrate the potential costs of a critical habitat designation, on April 7, 2023, NMFS published a “Petition to Establish a Vessel Speed Restriction and Other Vessel-Related Measures to Protect Rice’s Whales.” On July 21, 2023, in litigation between NMFS and the Sierra Club and others, attorneys representing NMFS filed a stipulated agreement for Rice’s whale protections through the not-yet determined Rice’s whale critical habitat area. These stipulations included removing significant acreage from offshore oil and gas Lease Sale 261, placing a mandatory 10-knot speed limit for oil and gas related vessels, and forbidding travel through the area at night or in other low visibility conditions. Yet the proposed rule for designation of critical habitat estimates consultations under the ESA will only cost the oil and gas industry $8,100 per year.

The proposed rule may also jeopardize the nation’s military readiness and national security by imposing additional restrictions on training activities at the Eglin Gulf Test and Training Range (“Eglin Gulf Range”). The U.S. Air Force uses the Eglin Gulf Range to train fighter pilots, maintain operational readiness, and test other military capabilities. NMFS’s proposed critical habitat area significantly overlaps with the test range of the Eglin Gulf Range, potentially placing restrictions on the Air Force’s use of the area for that purpose and hurting military readiness. Again, NMFS largely disregards this potential impact, estimating a cost to the military of $5,500 per year.

Furthermore, the Gulf of Mexico lands one-third of the nation’s seafood, contributing over $9 billion in commercial fishing activity. The waters of the Gulf of Mexico also attract millions of recreational anglers who contribute over $3 billion directly to the economy every year. For decades, these mariners have been safely and efficiently balancing their role in domestic food production with protecting a diverse array of marine life. If the area is designated, potential limitations such as vessel speed and time of day restrictions would be unnecessary and possibly even dangerous, jeopardizing not only the economic vitality of this region, but also the safety of mariners and anglers. Given the recent lawsuits and petitions against fishing activities filed by environmental groups on every coast, it is reasonable to be concerned that additional restrictions would also follow this critical habitat designation.

For these reasons, we request NMFS withdraw its proposed rule. If the service insists on moving forward with a critical habitat designation, then that proposed rule must comply with the ESA, be based on the best available science, designate a reduced critical habitat area within the total occupied area, and contain proper analysis of the economic costs and national security implications.